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Judgment
S. Rajeswaran, J.—O.A. No. 614 of 2006 is an application for an order of interim injunction restraining all the respondents, their men,
agents, servants, representatives, assigns, successors in title or any one claiming through them from alienating, encumbering, leasing or dealing in
any manner with the apartments constructed at the schedule mentioned premises pending disposal of the suit.
O.A. No. 615/2006 is an application for an order of interim injunction restraining the 1st Respondent, its men, agents, servants, representatives,
assigns or successors in title from carrying on any further construction or allied activities such as painting, plastering, wiring etc. at the schedule
mentioned property or handing over possession of the apartments at the schedule mentioned property to respondents 2 to 7, their agents,
successors, servants, men or assigns or any other 3rd party pending disposal of the suit.
The plaintiff in C.S.No. 565/2006 is the applicant in both the applications.
C.S.No. 565/2006 was filed by the plaintiff to declare the Power of Attorney dated 23.6.2005 and the 6 sale deeds executed on the basis of
the power of Attorney dated 23.6.2005 are null and void and also for a permanent injunction restraining the defendants from alienating the suit
schedule property.
The case of the plaintiff is that he is the absolute owner of the suit schedule property which is vacant land measuring an extent of 1800 sq.ft.
situated at VGP Selva Nagar Extension, Velachery. He purchased the same by a registered sale deed dated 28.3.1995 from one Mrs. Dulcie
Augustine represented by her Power of Attorney Dr. Julian for a valid sale consideration of Rs. 75,000/-.
The plaintiff was residing at Tambaram and in the year 1998, he left for Saudi Arabia to work as a dental technician. In 2000, he took his wife
and children also to Saudi Arabia and in February 2003, the plaintiff''s family returned to Chennai and took up residence at Tambaram and the
plaintiff continued to work in Saudi Arabia.
While so, in 2006 the plaintiff decided to construct a house at the property purchased by him in the year 1995 and only at that time it came to
light that the original document namely the sale deed dated 28.3.1995 was lost and therefore the certified copy of the same was obtained.
Thereafter when the wife of the plaintiff visited the suit schedule property she was shocked and surprised to know that a huge apartment complex
was coming up at the plaintiff''s property. On enquiries the plaintiff''s wife came to know that documents have been created as if the plaintiff sold
the undivided share in the property to defendants 2 to 7 through 1st defendant. The undivided shares in the property were sold to Defendants 2 to
7 on the basis of a power of attorney dated 23.6.2005 alleged to have been executed by the plaintiff. The plaintiff never executed the power of
attorney dated 23.6.2005 and a fraud has been committed to deprive the plaintiff of his property. Immediately the plaintiff''s wife contacted the
office of the 1st defendant but to her utter consternation, the 1st defendant insisted that all the acts and transactions have been done legally and to
prove the same the 1st defendant produced the original title deeds of the suit property. The 1st defendant seems to have set somebody as the
plaintiff and had a bogus and fraudulent power of attorney executed in their favour and using the bogus and forged Power of Attorney, the 1st
defendant sold the property to defendants 2 to 7.
Now, the construction work was proceeding at a brisk pace and as a matter of fact a very little work remains to be done before the apartments
are handed over to Defendants 2 to 7. Hence the plaintiff has filed the above two applications for interim injunction.
The 1st defendant filed a counter affidavit and defendants 2 to 7 also filed a common counter affidavit. A reply affidavit was also filed by the
plaintiff to the counter of the 1st defendant, for which a rejoinder affidavit has been filed by the 1st defendant.
It is the case of the 1st defendant that they did not even know who the plaintiff is and before purchasing the property owned by 2 individuals
by names Mr. Christopaul and Mr. Nedunchezhian through their Power of Attorney Ravichandran, they have taken all precautions in enquiring
about the property and its ownership and also obtained legal opinion from a leading law firm. They have not committed any illegal act and the wife
of the plaintiff never approached them as stated in the affidavit. According to them the property has already been conveyed and handed over to the
purchasers and the entire works are over and there cannot be any fraud or cheating on their side as alleged by the plaintiff.
In their counter affidavit Defendants 2 to 7 stated that they are the bonafide purchasers for a valid consideration and the entire work was
completed and the flats were handed over to them in June 28, June 29, July 2nd and July 3rd 2006. The flats are assessed to property tax by the
Corporation in their individual names and the water and sewerage taxes are also paid in their names. The electricity connection has also been given
to the respective flats in their name and all of them are in possession and enjoyment of the respective flats.
Heard the learned Counsel for the applicant/plaintiff and the learned Counsel for the respondents/defendants. I have also gone through the
documents filed and the judgment referred to by them in support of their submissions.
The learned Counsel for the applicant/plaintiff submitted that the applicant has been a victim of fraud and impersonation indulged in by the 1st
respondent/1st defendant, by taking advantage of his long absence in India. The alleged power of attorney itself was executed at a time when he
was at Saudi Arabia and the personal particulars given in the alleged power of attorney are all incorrect and this itself would prove that he had
never executed the power of attorney and in such circumstances all the sale deeds executed on the basis of the alleged power of Attorney is a
nullity in the eye of law. He relied on a decision of Delhi High Court reported in Girdhari Lal Tewari and Another Vs. Union of India (UOI) and
Others, in support of his contentions.
On the other hand the learned Counsel for the Respondents/defendants submitted that no illegalities were committed in the entire transactions
and even otherwise, the balance of convenience is not in favour of the plaintiff to get an order of injunction. The learned Counsel for the
respondents further submitted that the very fact that the original sale deed which was said to be lost by the plaintiff is with 1st respondent/1st
defendant would establish that, 1st defendant is a genuine and bonafide purchaser of the property for a valid consideration.
I have considered the rival submissions carefully.
Serious allegation of fraud and impersonation against the 1st defendant has been raised by the plaintiff, but till today no police complaint
whatsoever has been preferred either against 1st defendant or against any one. This inaction on the part of the plaintiff to give police complaint after
knowing that the entire suit schedule property was grabbed, developed and construction was almost completed is only to be held against the
plaintiff while considering the prayer for granting an interim in junction. Similarly once it was found out that the original sale dead was lost neither
the plaintiff nor his wife seems to be in a hurry to give a police complaint to trace out the lost original sale deed nor any paper publication has been
effected informing the public about the said loss of the original document. Instead they only applied for a certified copy of the original sale deed and
this easy going conduct on the part of the plaintiff is surprising especially when he alleges serious act of fraud and impersonation.
It is not in dispute that as on date respondents 2 to 7 have become the owners of their respective shares in the property and the documents
filed by the 1st respondent/1st defendant in the typed set of papers like patta, planning permit, building permit, approved plan, electricity deposit
receipt, corporation assessment, metro water connection charges receipts and handing over agreements would prima facie establish that the
construction of apartment is already over and Respondents 2 to 7 are now in possession of the apartments. Even though 2 third parties affidavits
have been filed by the applicant/plaintiff to show that respondents 2 to 7 are yet to occupy their apartments and some works have not yet been
completed, in the light of the documents above mentioned filed by the 1st respondent/1st defendant, I have to necessarily hold that the
applicant/plaintiff is not entitled to any order of injunction as according to me apart from no prima facie case is made out by the applicant/plaintiff,
the balance of convenience is also not in his favour. Moreover, Respondents 2 to 7 are bonafide purchasers and no allegation of fraud was raised
against them. In fact the third party interest has already intervened in this matter.
The suit itself is filed to set aside the alleged power of attorney and the subsequent sale deeds and until they are set aside in a manner known to
law the applicant/plaintiff is not entitled to any relief from this Court as an interim measure. The allegations of fraud, impersonation can only be
established during the trial by letting in legally acceptable evidence.
In Girdhari Lal Tewari and Another Vs. Union of India (UOI) and Others, , a Division Bench of the Delhi High Court held that public interest
demands strict action in a matter of forgery and fabrication of documents in order to protect public land and clean environment. Obviously the facts
in the above case are easily distinguishable and it is not useful to the applicant/plaintiff.
In the result there is no merit in the above applications and the same are dismissed. No costs.